EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2018-003
PARTIES
Brendan Lydon
(Represented by the ASTI)
Complainant
AND
Navan Education Centre t/a National Behaviour Support Service
(Represented by Mason Hayes & Curran Solicitors)
Respondent
File reference: EE/2014/310
Date of issue: 26 January 2018
1. Introduction:
1.1 On the 5th June 2014, the complainant referred a complaint of discrimination on the disability ground pursuant to the Employment Equality Acts. On the 24th February 2017 and in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts.
1.2 The complaint was scheduled for hearing on the 5th April 2017. The complainant was represented by Diarmuid de Paor, ASTI. Mason Hayes & Curran Solicitors represented the respondent. Two witnesses attended for the respondent, referred to in this report as the Director and the National Co-ordinator.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act.
2. Summary of the complainant’s evidence and submissions:
2.1 In the complaint form of the 5th June 2014, the complainant outlines that staff employed as Assistant National Coordinators at the respondent had to re-apply for their roles and there would be a reduced number of roles available. He was assessed in an interview process while a colleague, who was ill, was given the role without being interviewed or going through a process. The complainant asserts that this is discriminatory treatment on the disability ground.
2.2 In submissions, the complainant outlined that he was employed on secondment with the respondent between 2006 and 2014. He was an Assistant National Coordinator. He and his colleagues were informed in 2014 that the number of roles were to be reduced. In its letter of the 4th March 2014, the respondent set out criteria for how it would select which internal candidates were retained. The complainant presented for interview on the 27th March 2014. He raised issues regarding the conduct of the interview in an email of the 16th April 2014. This related to arriving at the interview centre and meeting no one at reception. He waited in the waiting area until a member of the interview panel approached him to ask how long he had been there and that the panel was waiting for him. He was also asked whether he had his phone with him. He responded by saying that he had been 15 minutes early and submitted that this interchange compromised the process. He also raised how a candidate was selected without going through the process. It is submitted that this amounts to discrimination as the complainant was treated less favourably because he does not have a disability.
2.3 The complainant summed up his complaint by saying that the discrimination was how he was treated as a person without a disability against a person with a disability. The comparator had been hospitalised and had a temporary illness. This colleague started working in the role in September 2014. The complainant referred to the respondent’s letter of the 4th March 2014, which affirmed that the selection was to be made by interview. The email of the 11th April 2014 referred to delaying the process to allow sick colleague attend for interview. The complainant said that while there had been issues with the day of the interview, those issues were not part of this claim. In response to his email, the respondent replied that the criteria used were “future-oriented”. He commented that the respondent was still advertising for the role in June 2014, so there had been no urgency to complete the process by the end of April, as claimed by the respondent. The complainant explained that he managed services in the west and mid-west to promote “positive behaviour”, in order to tackle low level dysfunction and to improve classroom management. It was a support service for schools. The complainant had been a principal in two schools and commenced in the Assistant National Coordinator role in 2006.
2.4 The complainant said that he returned to the school after his secondment came to an end. His school amalgamated with another and he had to return to a teaching role. There had been a feeling in the school that he had not been able to do the job. This was the perception as the job had been given to someone not interviewed for the role. The message was that he was not good enough. He was now training to be a career guidance teacher, at his own expense and did this while holding down his job as a teacher. He confirmed that the school was a recipient of support from the respondent.
2.5 In reply to the respondent, the complainant accepted that secondments were made on an annual basis and renewable every year. This, however, was an access to employment case and the complainant had a right not to be discriminated against. It was not practice for secondment applications to be lodged by the 1st March every year. It was submitted that section 33 of the Employment Equality Act permits positive action but it does not permit discrimination. The respondent could have altered the recruitment process. Instead, it had removed one form of discrimination and replaced it with another. They could have created a matrix to assess candidates in place of the interview process. Referring to Nano Nagle School v Daly [2015] IEHC 785, it was submitted that this did not apply to this access to employment case. Referring to Circular 107/2006, this permits teachers to be on secondment for a maximum of ten years. The complainant had completed eight years and so could have done at least two more years. He commented that others had been able to do more than ten years on secondment.
2.6 The complainant further submitted that the normal practice was for a teacher on secondment who had to avail of sick leave to return to their school post while on sick leave. The complainant outlined that the respondent could have used seniority to decide between the candidates. The comparator was the most junior of the three as she had been promoted to the role. He commented that in 2013, their schools had been informed of the secondments on the 13th May 2013. This took place at an earlier date in 2014. The respondent had rushed the interview process in 2014, holding the interviews on the 27th March and issuing the letter to the complainant on the 11th April 2014. The complainant stated that colleagues in the respondent had been able to remain on secondment beyond ten years, including the National Coordinator. One Regional Development Officer had obtained the Assistant Director role.
2.7 The complainant outlined that he did not contest that the respondent had an issue to deal with but it was not correct to discriminate against the candidates who were not disabled. The respondent had adopted a crude approach, leading to the discrimination against non-disabled people. In reply to the respondent, the complainant commented that the respondent had changed the process for one person. The complainant said that legal advice was not always correct. The respondent had accepted that it was responsible for the decisions made in relation to the recruitment process. The instruction given to the respondent was wrong and should not have been followed. Reasonable accommodation did not give the right to discriminate against others. The complainant commented that it was usual for substitute teachers to be informed in May whether seconded teachers were to return.
3. Summary of the respondent’s evidence and submissions:
3.1 In submissions, the respondent outlines that its support service to post-primary schools commenced in 2006 and the complainant was one of the staff seconded to the service. Like his colleagues, the complainant was issued with annual fixed-term contracts, the most recent being the contract of the 1st September 2013 and the 31st August 2014. The respondent refers to limitations placed on secondments rolling over for the forthcoming academic year, so that two of the four Assistant National Coordinators would receive one further secondment for the period of one year. The secondment of the two other staff members would end. The respondent established an interview board to interview the Assistant National Coordinators according to the following, future-oriented criteria: qualifications, vision for the service going forward, performance at interview and capacity to contribute to the ongoing need of the service in the future.
3.2 The respondent outlined that three of the four Assistant National Coordinators applied for the two posts. One of the candidates was hospitalised with the sudden onset of a serious medical condition. The remaining two candidates were interviewed on the 27th March 2014 and were ranked according to their performance. The colleague who had been taken ill was not available for interview and the respondent delayed issuing the results of the interview process to allow this person to be interviewed. The complainant was informed by telephone on the 11th April 2014 that he was not successful at interview and by letter of the 2nd May 2014 that his secondment would end on the 31st August 2014. The respondent had decided to appoint the colleague who was ill, leaving one post to be filled. The complainant had ranked second of the two candidates interviewed. There was an urgency to complete the process by the 1st May 2014 to allow the boards of management of the relevant schools to approve the further secondments of the retained Assistant National Coordinators.
3.3 The respondent states that the allocation of one post to the candidate with a disability reduced the complainant’s chances of being successful from 66.6% to 50%. It notes the obligation in the Employment Equality Act to provide reasonable accommodation to persons with disability and how this may inevitably mean less favourable treatment of employees with no disability or a different disability. The respondent submits that, even if successful, the complainant would have only been able to continue for one year. In any event, he reverted to his substantive post of principal.
3.4 In evidence, the respondent accepted that sometimes secondments took place after the 1st March but this was related to delays on the part of boards of management, for example in refusing to sanction a secondment until the school had a replacement in place. There had been four Assistant National Coordinator posts, which were to be reduced to two. The respondent was obliged to hold the interview process for the role. The respondent outlined that the comparator took ill on the 18th March 2014 and there was no indication when she would return. The respondent proceeded with the interview process and they sought advice as they did not know whether the comparator would be fit for interview. The sick teacher had been hospitalised for over three months and was then on sick leave. She had to undergo rehabilitation. The respondent was informed that the comparator was not fit for interview. They were advised to give the comparator a “bye” for the interview stage. On this advice, the respondent removed one of the two jobs from the competition, leaving two candidates for a single job. While they had held off engaging the process, they scheduled the interviews for late March. It had been the Department who advised to give the comparator the “bye”. The respondent outlined that the number of secondments was set by the Department. It had not looked at alternatives to assessing all three candidates without interview, for example by way of a matrix. The three candidates all started working for the respondent in 2006. It submitted that the Nano Nagle case was relevant as it had sought to provide reasonable accommodation to the comparator. This could have an adverse effect on colleagues. The respondent submitted that the complainant was able to keep a principal’s allowance following the end of the secondment.
3.5 In reply to the complainant, the respondent outlined that the two colleagues he cited as staying on secondment for more than 10 years had left within the year. One retired and the other returned to her school. One witness said that she had been allowed an 11th year as she was now working with the NCSE. The respondent submitted that a decision had been made on balance so that the process had the least effect on the person with a disability. In April, the comparator had transferred to a specialist rehabilitation hospital, so it was unclear when she would be available. It was submitted that because the interviews had already been held, it was difficult to then change the selection process. In further reply to the complainant, the respondent outlined that it had been instructed to give the comparator the “bye” and to fill the one remaining position by interview. An accommodation had been given to a person with a disability, leaving two people going for one job, instead of three people going for two jobs. Time had been an important factor as there were substitute teachers who needed to know whether seconded staff would be returning to their posts.
4. Findings and conclusions:
4.1 The complainant asserts that he was subject to discriminatory ground on the disability ground. The complainant does not have a disability and asserts that the discrimination arises from a colleague, who developed a disability, being = appointed to a role without interview. This left the complainant and another colleague to seek appointment to the one remaining post. He asserts that as the colleague who became sick could not be interviewed, the respondent ought to have assessed their applications by way of a matrix or seniority, as opposed to giving the sick colleague a bye. The respondent denies the claim, referring to its obligation to provide reasonable accommodation in section 16 of the Employment Equality Acts and positive action provided in section 33 of the Act. It states that the consequence of giving the sick colleague a bye reduced the complainant’s chances of securing the one remaining post to 50/50. It submits that the complainant returned to his substantive post and that there was only one possible further year of secondment. In this case, it was not in dispute that the comparator fell within the scope of disability in the Employment Equality Act and I make this finding.
4.2 The first issue to consider is whether a person without a disability can avail of the Employment Equality Act to assert that they have been discriminated against with regard to the treatment afforded to a person with a disability. In essence, the question is whether the disability ground provides symmetrical or asymmetrical protection. Does it provide an avenue for both persons with a disability and those without to seek redress (i.e. symmetrical protection)? It is not particularly controversial that grounds such as gender and race should be symmetrical, for example in challenging gender or race stereotypes. For a general discussion on this topic, see Schoenbaum N. “The Case for Symmetry in Antidiscrimination Law” (September 12, 2016) Forthcoming to Wisconsin Law Review, 2017. Whether the complainant in this instant case can bring a disability claim as a person without a disability must be determined according to the relevant statutory provisions. It is worth setting out those provisions in detail.
4.3 Section 6 of the Act provides where discrimination occurs and sets out nine grounds:
“6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds’ ) which —
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person —
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
(b) that they are of different civil status (in this Act referred to as “the civil status ground ”),
(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),
(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),
(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),
(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),
(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground ”). It is worth noting that the grounds set out in section 6(2) are formulated in two different ways. The first formulation presents the ground as binary, for example woman/man, family status/no family status and disability/no disability or different disability and member of the Traveller community/not a member. The second formulation refers to one person being different from the other person; see the civil status, sexual orientation, religious belief, age and race grounds. The latter personal traits are characterised as being disparate; there are multiple forms of civil status, sexual orientation, religious beliefs, ages and races.
4.4 Section 28 addresses the issue of comparators in non-gender discrimination:
“28.— (1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:
(a) in relation to the civil status ground, C and D have different civil status;
(b) in relation to the family status ground, C has family status and D does not, or vice versa;
(c) in relation to the sexual orientation ground, C and D are of different sexual orientations;
(d) in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, or vice versa;
(e) in relation to the age ground, C and D are of different ages;
(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities;
(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;
(h) in relation to the Traveller community ground, C is a member of the Traveller community and D is not, or vice versa.
(2) In the following provisions of this Part, any reference to C and D which does not apply to a specific discriminatory ground shall be treated as a reference to C and D in the context of each of the discriminatory grounds (other than the gender ground) considered separately.”
4.5 Section 30 imports an equality clause to all contracts of employment for grounds other than gender. It provides that C’s contract shall be modified where the claimant is found to have been less favourably treated on the ground: 30.— (1) If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a non-discriminatory equality clause, they shall be taken to include one.
(2) A non-discriminatory equality clause is a provision relating to the terms of a contract of employment, other than a term relating to remuneration or pension rights, which has the effect that if—
(a) C is employed in circumstances where the work done by C is not materially different from that done by D in the same employment, and
(b) at any time C’s contract of employment would (but for the non-discriminatory equality clause)—
(i) contain a term which is or becomes less favourable to C than a term of a similar kind in D’s contract of employment, or
(ii) not include a term corresponding to a term in D’s contract of employment which benefits D,then the terms of C’s contract of employment shall be treated as modified so that the term in question is not less favourable to C or, as the case may be, so that they include a similar term benefiting C.
(3) A non-discriminatory equality clause shall not operate in relation to a difference between C’s contract of employment and D’s contract of employment if the employer proves that the difference is genuinely based on grounds which are not among those specified in paragraphs (a) to (h) of section 28(1) .
(4) Without prejudice to the generality of section 8(1 , where a person offers C employment on certain terms and, were C to accept the offer on those terms, the non-discriminatory equality clause in C’s contract of employment would have the effect of modifying the terms in either of the ways specified in subsection (2), the making of the offer shall be taken to amount to discrimination against C in relation to C’s conditions of employment on whichever of the discriminatory grounds is (or are) relevant to the difference (or differences) between C and D.
4.6 The amended section 33 of the Employment Equality Act provides as follows:
33. — Nothing in this Part or Part II shall render unlawful measures maintained or adopted with a view to ensuring full equality in practice between employees, being measures —
(a) to prevent or compensate for disadvantages linked to any of the discriminatory grounds (other than the gender ground),
(b) to protect the health or safety at work of persons with a disability, or
(c) to create or maintain facilities for safeguarding or promoting the integration of such persons into the working environment.
4.7 Section 35 provides as follows:
35.— (1) Nothing in this Part or Part II shall make it unlawful for an employer to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of the disability, the amount of that work done by the employee during a particular period is less than the amount of similar work done, or which could reasonably be expected to be done, during that period by an employee without the disability.
(2) Nothing in this Part or Part II shall make it unlawful for an employer or any other person to provide, for a person with a disability, special treatment or facilities where the provision of that treatment or those facilities—
(a) enables or assists that person to undertake vocational training, to take part in a selection process or to work, or
(b) provides that person with a training or working environment suited to the disability, or
(c) otherwise assists that person in relation to vocational training or work.
(3) Where, by virtue of subsection (1) or (2), D, as a person with a disability, receives a particular rate of remuneration or, as the case may be, special treatment or facilities, C, as a person without a disability, or with a different disability, shall not be entitled under this Act to that rate of remuneration, that treatment or those facilities.
(4) References in this section to a particular rate of remuneration are to a rate of remuneration which is not below the minimum rate to which the employee concerned is entitled under the National Minimum Wage Act 2000.
4.8 The academic publications on Irish equality law suggest that the provisions relating to disability are symmetrical as opposed to asymmetrical. The authors Bolger, Bruton and Kimber state as follows at paragraph 7.09 of Employment Equality Law, Round Hall, 2012, Dublin:
“The approach of the Court of Justice, which rejected a restricted interpretation of the provisions of the Framework Directive, is suggestive of a symmetrical approach to disability discrimination. This is consistent with the Irish legislation which at first glance retains the symmetrical approach to disability discrimination by defining direct discrimination as less favourable treatment on the ground that one person is disabled and other is not or is a person with a different disability. However, there are a number of other provisions within the Irish legislation which set forth an asymmetrical approach to disability, most notably s.35(1) which provides that it is permissible for employers to discharge a special rate of remuneration for employees with disabilities. This does not apply to persons who are not disabled within the meaning of the Acts. There is a suggestion from a decision pursuant to the Equal Status Acts 2000 – 2004 that a symmetrical approach to the disability discrimination provisions is the appropriate approach, having regard to the fact that the Oireachtas did not expressly exclude able-bodied persons from the provisions of the Act. Therefore, it remains to be seen whether non-disabled persons can maintain claims of less favourable treatment as compared to a person with a disability. If this was found to be correct, it seems it would be more difficult for a person without a disability to establish a connection between the impugned treatment and the lack of a disability.”
4.9 In Disability Discrimination Law (Round Hall, 2010, Dublin), Smith addresses the issue of whether disability discrimination is symmetrical in the following terms:
“5.17 One issue which needs to be considered is whether the traditional symmetry of the direct discrimination principle operates in the disability context. As has already been pointed out, under sex discrimination law the principle of equal treatment demands that persons of either sex are equally protected from sex discrimination.
5.18 A number of arguments have been advanced in favour of the view that disability discrimination law ought to adopt an asymmetrical approach. The rationale is that the right of the disabled individual (that is, the right not to be treated less favourably than a non-disabled comparator) is designed to offset the effects of stereotyping, negative attitudes and bias which disabled people endure by reason of their disability. Generally speaking, non-disabled people cannot endure less favourable treatment on the disability ground as they do not fall within the definition of disability. There are, of course, important exceptions to this principle, which include discrimination as a result of an association with a disabled person, or where an individual is perceived to be or regarded as a disabled person, or where the person has a record of a disability from the past or is presumed to develop one in the future. The EEA, as amended by the Equality Act 2004, extends protection to those who are regarded as having a disability – that is, the discriminatory ground is imputed to them and they are treated less favourably as a consequence.
5.19 The asymmetrical nature of the disability discrimination provision has been affirmed in equivalent legislation in the UK, although EU commentators remain divided as to what stance will be taken by the ECJ on this point. According to Waddington, the direct discrimination provision:
“Could be interpreted as embracing a symmetrical approach to disability discrimination, in other words as protecting an individual from discrimination on the grounds that they are disabled as well as discrimination on the grounds that they are not disabled.”
However, the position under the EEA is somewhat unclear as there appears to be no departure from the symmetrical operation of the less favourable treatment dictated in the description of the operation of the grounds in the provision dealing with disability. Section 6(2) sets up the disability ground as “one person with a disability and the other is not” (or the other is a person with a different disability) and this has been the basis of symmetrical protection in the other contexts. Further s.28(1) describes the comparators in respect of the non-gender discriminatory grounds, and it expressly operates in a symmetrical fashion:
“For the purpose of this part “C” and “D” represent two persons who differ as follows:
(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities.”
5.20 Other provisions of the EEA may provide some assistance, however, they can be subject to opposing interpretations. For instance, s.35(3) of the EEA appears to support the asymmetrical nature of the disability discrimination provisions, particularly with respect to the provision of special treatment or facilities to persons with disabilities under s.35(1), which allows for special rates of remuneration, and s.35(2), which provides for special treatment in vocational training. Where such special treatment is forthcoming, a person without a disability (or with a different disability) is not entitled under the Act to the rate of remuneration, the special treatment or facilities.
5.21 The only discussion of this issue has arisen under the Equal Status Act. In McCall v Area Development Management Ltd, the Equality Officer rejected the argument supporting the asymmetrical nature of the direct disability discrimination principle. It was argued that the disability ground only protects people with a disability and does not cover the situation in which an able-bodied person is treated less favourably than a person with a disability. The Equality Officer relied on the inclusion of the formulation “the one … and the other”, which refers to two persons being of different sexual orientation, gender, race etc. in the statutory description of the discriminatory grounds. This, it was held, “does not support the view that the discriminatory grounds operate only in one direction.” The Equality Officer was not inclined to consider whether this principle might not, or ought not, operate in the disability context. He took the view that if it was the intention of the Oireachtas to exclude a claim from an able-bodied person on the grounds of better treatment endured by a disabled person, then it “would have stated this and would not have used the wording contained in s.3(2).” Whether the construction of s.35(2) under the EEA is sufficient in this regard is open to question.”
4.10 Both texts refer to the decision of the Equality Tribunal in McCall v Area Development Management Ltd (DEC-S2007-058). This was an Equal Status case taken by the complainant taxi driver in relation to the Taxi Hardship scheme administered by the respondent. As outlined above, the Equality Officer held that the Equal Status Act sets out symmetrical grounds of discrimination and there is no express prohibition on a person without a disability from bringing a claim of discriminatory treatment on the disability ground. He also states that sections 6(5) and 16(1) of the Equal Status Act would not be necessary if only persons with disabilities could bring claims. Ultimately, the Tribunal held, at paragraph 29 that the preferential treatment in the scheme fell within the ambit of section 14(b) of the Equal Status Act:
“The test contained in section 14, paragraph (b)(ii), requires that there be a bona fide intention to cater for the special needs of a category of persons who, because of their circumstances, may require assistance not required by persons who do not have those special needs. This test does not require me to decide whether the provisions for persons with a disability in the Scheme were reasonable or appropriate or excessively favourable as compared with the treatment of persons outside that category, merely that there was a bona fide intention to cater for the special needs of a category of persons who may require this assistance. I am satisfied that, in including the disability category in the Scheme, there was a bona fide intention to help disabled persons whose incomes were reduced when their taxi licences lost value following liberalisation and that this is not prohibited by the Equal Status Act”
4.11 For completeness, section 14(b) of the Equal Status Act provides as follows:
“(b) preferential treatment or the taking of positive measures which are bona fide intended to—
(i) promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons, or
(ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs”
It is worth noting that this provision reflects the positive action provisions of sections 33 and 35 of the Employment Equality Acts, although there is no reference to bona fide intention in these latter provisions.
4.12 There is no express prohibition in the Employment Equality Act to prevent a person without a disability from pursuing a claim of discrimination on the disability ground (as there is, for example, in the UK and US legislation). It follows that whether the Employment Equality Act permits a person without a disability to assert discriminatory treatment when compared to a colleague or job applicant with a disability can only be determined by the wording of the above statutory provisions. While I have noted that section 6 formulates the grounds in two ways (binary or based on differences), I cannot conclude this means that the disability ground and the other binary grounds are asymmetrical. First, it is well-established that the gender ground is symmetrical; men can take gender discrimination complaints. Section 28 is clear that analysis of comparative treatment between ‘C’ and ‘D’ is on a vice versa basis, i.e. C can take the case against D and D, a case against C. I note, however, that section 30 refers to ‘C’ as person disadvantaged by whichever ground in question. Sections 33 and 35 address positive action and the latter provision specifically relates to disability. As pointed out above, such provisions would only be necessary if the grounds could be relied on by all, including complainants who are not disabled. Of course, this raises the scenario where a complainant must establish that their comparator falls within the definition of disability in the Act. This does not arise in the instant case as the question of the comparator’s disability was not in dispute.
4.12 It is clear that the complainant was treated differently to his colleague who became seriously ill overnight. I accept that the respondent sought to address this situation by first interviewing the two available candidates and delaying the announcement of the process to allow the sick colleague attend for interview. When there was no indication of when she would recover, the respondent deemed the colleague to be appointed. It informed the complainant that he had ranked second at interview and there was only one remaining place. This is certainly differential treatment on basis of the colleague’s disability. The question is whether it falls within the ambit of either sections 33 and 35. It does not fall within the ambit of section 33 as it cannot be said to be done to ensure “full equality”. It was done to address a difficult situation where one candidate was ill and unfit for interview. Full equality would be achieved, for example, by doing the desktop exercise. In respect of section 35(2)(a) and (c), it is clear that this was not an endeavour to assist the comparator participate in the selection process. She was not assessed in any way, for example by way of a desktop matrix or on the basis of seniority. Despite this, section 35 appears to give an employer wide latitude in giving a disabled employee special treatment or facilities; it states “nothing in this Part … shall make it unlawful etc.” I appreciate the unfairness felt by the complainant. He worked for the respondent since 2006. He and his colleagues performed well so that the respondent established a “future-oriented” process to assess the internal candidates. There was no assessment of the sick colleague; instead, she was given a bye. The complainant suggested alternative ways of assessing all three candidates, without having to interview the colleague who was ill. The respondent did not consider any alternative. Despite these comments, I find that section 35 is of wide enough ambit to cover the actions of the respondent in this instance. The language of the provision covers special treatment and facilities and does not exclude the actions taken by the respondent in this case. The actions taken by the respondent enabled the comparator to work. While this disadvantaged the complainant, it was permissible special treatment within the scope of the Employment Equality Act. It follows that the complaint is not well founded.
5. Decision:
5.1 In accordance with section 79 of the Employment Equality Acts, I conclude the investigation and hold that the actions of the respondent fall within the scope of section 35 of the Employment Equality Act and the complaint is, therefore, not well founded.
____________________________________
Kevin Baneham
Adjudication Officer / Equality Officer
26 January 2018